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Confidently Incorrect: Misunderstanding “How Much Is Too Much” for Fair Use
Of the four statutory fair use factors, the “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” may be the one that generates the most confident wrong answers. In my experience, when I ask people whether a use is fair, many will reach for a number: no more than 10%, no more than 1,000 words, or no more than one chapter. These thresholds feel authoritative, and they are stated with conviction. Yet they are legally meaningless, as Kenny Crews documents in his 2001 article The Law of Fair Use and the Illusion…
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